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COVID-19 Q & A on Telehealth, Licensing Restrictions, Funding and the CARES Act

The regulatory landscape at the state and federal levels is changing rapidly in response to the COVID-19 pandemic (Pandemic). The following questions and answers discuss those changes.

Q. How has Maryland loosened interstate practitioner licensing restrictions?

A. On March 16, 2020, Governor Lawrence Hogan issued an executive order relating to various health care matters. Under this order, it is easier for out-of-state practitioners to work in a Maryland health care facility during the duration of the current state of emergency.

A health care facility includes hospitals, freestanding medical facilities, ambulatory surgery centers and home health agencies. It can also include any other facility the Maryland Secretary of Health designates for treatment, isolation and/or quarantine during the Pandemic.

Practitioners must have a valid, unexpired license from another state and may work in Maryland to allow a “health care facility to meet required staffing ratios or otherwise ensure the continued and safe delivery of health care services.”

Professionals who typically require a temporary practice license to work in Maryland, such as nurses, are still required to apply for a temporary license within 10 days of starting to work at a Maryland health care facility during the Pandemic.

Q. What about the scope of practice?

A. During the state of emergency, health care providers, including physician assistants and nurse practitioners, are allowed to engage in activities at a health care facility where they are not regularly authorized to perform under their existing license if the following conditions are met: (1) the activity must be necessary to meet the health care facilities required staffing ratios or allow for the continued and safe delivery of health care; (2) a qualified supervisor must determine that the practitioner is qualified to engage in the particular activity; and (3) the supervisor must “reasonably supervise” the activities.

Q. How is the federal government encouraging telemedicine?

A. Effective as of March 6, 2020, the Centers for Medicare and Medicaid Services (CMS) issued a waiver that allows Medicare to pay for telemedicine services to replace common, in-office visits across the country in all settings, including patients in their homes.

Providers, including doctors, nurse practitioners, physician assistants and clinical social workers, can provide services via an interactive, audio-video platform that allows for real-time, two-way communication. These interactions will be paid at the same rate as regular, in-person visits.

Further, Medicare typically requires that a provider have a prior, existing relationship with a patient before providing services via telehealth. However, for the duration of the Pandemic, the U.S. Department of Health and Human Services (HHS) will not conduct audits to determine if a provider has a prior, existing relationship with the patient for these types of outpatient visits, or emergency department or initial inpatient consultations.

Q. Do providers have to follow HIPAA for telehealth?

A. On March 17, 2020, HHS announced it would not impose penalties against providers who used audio or video communication technology that does not meet all of the privacy and security requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as amended by the Health Information Technology for Economic and Clinical Health Act to provide telehealth to patients during the crisis.

This means any provider can use any non-public facing remote communication product, such as Apple’s FaceTime, Google Hangouts, Facebook Messenger video chat or Skype, to communicate with patients whether the service is related to the diagnosis and treatment of conditions related to COVID-19 or not.

Providers are encouraged to notify patients that the third-party services introduce security and privacy risks.

Q. What is the CARES Act?

A. The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress and signed by President Donald Trump on March 27, 2020, to address the Pandemic. The more than 800-page law allocates at least $2 trillion toward various sectors of the economy to start addressing the widespread financial impact of the Pandemic, including the health care industry.

Q. What is the Public Health and Social Services Emergency Fund?

A. The health care community lobbied aggressively to ensure that providers received direct economic benefits in the CARES Act to ease the burden of lost revenue due to the costs of treating COVID-19 patients and the reduction of other health care services.

The CARES Act directs $175 billion to the Public Health and Social Services Emergency Fund (Fund) to support hospitals, physician groups and other health care providers.

The first $50 billion of the Fund was distributed to Medicare providers, as a cash payment and not a loan, based on their share of 2019 Medicare fee-for-service reimbursements via their typical automated clearing house or paper payments.

Providers will have to certify that they provide diagnoses, testing or care for individuals with actual or possible cases of COVID-19 and will use the funds to prevent, prepare for or respond to the Pandemic or to replace lost revenue attributable to the Pandemic.

Other restrictions on the funds include caps on employee salary reimbursement and the prohibition of using funds for lobbying or most abortion care. Funds also cannot be used to reimburse expenses or losses that the provider has had reimbursed from other sources, including other federal relief programs.

Providers are also required to abstain from “balance billing” any patient for coronavirus-related care.

If a provider receives more than $150,000 from the Fund or any other Pandemic-related relief package, additional reporting requirements must be met. Within 10 days after the end of each calendar quarter, the provider must file a report about how the funds were spent with the HHS Secretary.

The CARES Act earmarks additional distributions of the Fund to providers in areas most impacted by the Pandemic, providers in rural areas and providers who predominantly serve Medicaid populations.

Q. What loans are available from the Small Business Administration?

A. The CARES Act also includes the Small Business Administration’s PPP, a federally backed loan program that could provide up to $10 million in loans.

Employers must maintain their staffing levels similar to pre-Pandemic levels to receive forgiveness for these loans. Loan recipients will be eligible for loan forgiveness in an amount equal to their payroll costs during an eight-week period generally beginning on the date of the loan’s origination, capped at the rate of $100,000 per year per employee; paid sick or medical leave; insurance premiums; interest payments on mortgages; rent payments; and utility payments.

Q. Does the CARES Act impact health care reimbursement rates?

A. Yes. A planned 2% Medicare sequester was suspended from May 2020 to December 2020. Hospitals outside of Maryland treating Medicare patients with COVID-19 will receive a 20% add-on payment for Medicare reimbursements for inpatient care.

Q. Will the CARES Act help providers access additional personal protection equipment?

A. Yes. The CARES Act calls for spending an additional $27 billion from an emergency fund, so medical professionals can receive more personal protection equipment (PPE). These funds will be managed by the Assistant Secretary for Preparedness and Response, part of the HHS, so PPE can be purchased and distributed through the Strategic National Stockpile.

Q. Does the CARES Act address health care provider liability?

A. Yes. The CARES Act limits liability for volunteer health care professionals during the COVID-19 emergency response for health care provided within the scope of the volunteer’s licensure and made in good faith to fight COVID-19.

Certain exceptions to this liability limitation include harm caused “by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional” or if the provider was intoxicated when providing care.

Alexandria K. Montanio
410-576-4278 • amontanio@gfrlaw.com

Note: The information regarding the CARES Act is changing rapidly. This article is based on information available as of June 1, 2020.